ERCESOQR - Volume 2

Anti-Semitism during the 19^th Century : At the crossroad among Criminal Justice : Criminology, History and political science

By Thomas Gilly, ERCES

The title of this essay assumes that the issue is relevant to criminology, history and political science. Why? In this first part of my essay, I will try to answer this question in the most general and, if possible, most condensed manner. Instead of answering directly the question directly, allow me introduce this essay with a short anecdote:

When Napoleon Bonaparte was victorious and his army occupied the Netherlands, Dutch Jews were disappointed and even angry. Given the fact that the exportation of the French emancipation model all over Europe received the warmest of welcomes from the Jews of Europe, the reaction of the Dutch Jews is somewhat paradoxical. All the evidence suggests that the Dutch Jews were disappointed about a model of emancipation to which they did not want to be subjected. It is very likely that the Dutch Jewish community was already emancipated and that the model they experienced and might have to discard was, in their eyes, better than any other.

With regards to my initial question, it is sufficient to acknowledge that the 19^th century confronted Jewish communities with different and even opposite schemes of emancipation.

The question as to the degree to which Jewish people are emancipated citizens can easily be answered with reference to variations in the process that grants civil rights and fundamental liberties to the Jews. And yet it could be that Jewish people are emancipated people with regards to law, and not in fact. It is also very likely that a particular model or scheme of emancipation provides either for a more restrictive or a more liberal understanding of emancipation than another.

The 19^th century is not only the siècle which developed various schemes of emancipation. It is also the century that experienced various figures who developed within a specific scheme of emancipation. And it is a century that teaches much about the discrepancy between law and fact.

With regards to this observation it is worth acknowledging that 19^th century anti-Semitism is modern anti-Semitism. It is modern anti-Semitism in this sense that anti-Semitic violence and crime, during that century, developed despite the process that granted civil rights and fundamental liberties to the Jews. From the moment on when civil rights and fundamental liberties are constitutionally protected, anti-Semitism can no longer be constructed with reference to religion, all the more so as religious liberty is a fundamental human rights. Modern anti-Semitism means that the reference of religion is supplanted by that of ethnicity. And yet during the 19^th century, ethnical differences are often associated with religion. That century must be thought of as the laboratory that produced and experienced the whole gamut of symptoms – religion, ethnicity, but also politics, both progressive and revolutionary and conservative and reactionary tendencies being involved – through which anti-Semitism expresses and must be understood.

Obviously the discussion of our subject is relevant for the history of anti-Semitism. But it would be an error to limit the historical relevance to that aspect. Another no less important point is that 19^th century anti-Semitism must be thought as of various and even antagonistic figures of emancipation and as of variations in the degree of emancipation. This assumes that (i) emancipation, during the 19^th century, shows a heterogeneous rather than a homogenous nature, (ii) that emancipation, during he 19^th century, is a process rather than definitively established reality.

This circumstance explains the interest of our subject for political and social sciences. As a reality that is not definitively established, but in process, emancipation is an indicator for societies that are late in achieving the goals of modern political culture.

Obviously the study of 19^th century anti-Semitism is relevant to political and social sciences. There is another important point that explains the relevance of this issue for political and social sciences. 19^th Century Anti-Semitism interferes in the global context of emancipation, but in the same time it impedes the development of modern political culture.

Today anti-Semitism is an offence that is defined and sanctioned by law. Criminal Justice is involved in the fight against anti-Semitism. In modern democratic and laY societies, the justice system is presumed to function in a more or less satisfying manner. Criminal justice, in such societies, is supposed to work well. And yet we have all experienced the manner in which criminal justice does its job is sometimes controversial and subject to critics. This is particularly the case when the criminal justice is confronted with socially or political sensitive matters. Anti-Semitism is such a sensitive matter. It is very likely that this matter is much more sensitive than others, and this explains its high relevance for (criminal) justice issues, namely the discrepancy between the ideal of (criminal) justice and its reality. For argument’s sake let me point at one example only:

In the month of August 2004, the “Affaire du Lycée Montaigne”[1] came rapidly to the fore of the public debate. A young Jewish schoolboy was the victim of anti-Semitic proposals and violence committed by two others of his class; the latter were of Arab origin. The chief of the school decided to banish them from the school. In order to protest the offenders’ parents went to Court. The Court revoked the banishment, after what the parents of the victim appealed the decision but lost their appeal.

The Administrative Appeal Court recognized that the young Jew has been the victim of verbal and physical violence; but the Court refused to admit the anti-Semitic nature of these violent acts. The Court argued that such acts are inherent behaviour of the every day break. The violent acts, instead of being aimed at this particular Jewish schoolboy or even at the whole Jewish people, were rather the expression of young schoolboys who sent their frustration and anger on a “black sheep”.

Note tHat the Court’s decision, to a large degree, picked up the comments of the Human Rights League to which the parents had referred the matter in order to get support. The comment’s core-idea was that in a social and political context wherein the fight against racism is a major goal, it can not be that such a fight which is a major concern of all citizen profit to a specific community. The banishment of the Jewish schoolboy, if really applied, would involve the shifting of the fight against racism – shifting that is inadmissible from the view point of Human Rights – from a universal level to a communitarian, with the effect that a specific community would profits from the legal protection against racism, whereas another one would be excluded.

Even if the Appeal Court did not refer directly to the Human Rights League core-proposal, it is very likely that such consideration has had an influence upon the Court’s decision making.

It is not the place here to discuss the question whether this decision is right or wrong from the legal viewpoint, whether it is deplorable from an ethical viewpoint or not. What is important here is that the decision provoked protest from members of the Jewish community, and many Jews associated it with injustice rather than with justice. Note that it engendered somewhat revolting consequences. Indeed the two offenders went back to school, whereas the parents of the victim, in order to protect their boy from future violence, decided that he should not return to that prestigious school.

Obviously anti-Semitism is a politically and socially sensitive issue. It is sensitive because it involves major social problems that the French society is likely to ignore rather than to face. In the actual French public debate the social problem that is involved is labelled “communitarism”. The notion is foreign to the Anglo-American culture; simply it does not exist. The reason is that the French word “communitarism” (note that it is a neologism) provides communitarian social life and social order with a negative connotation. Thus the notion, by negatively labelling the problem to which it refers, crystallizes the issue. The clash of a model of society that is largely the tributary of the Jacobinian tradition; a society that traditionally highlights the primacy of an abstract and normative conception of universals that involves assimilation (that is applied to each individual regardless to his/her religious or ethnical community membership), the postulated equality of each individual and finally a vertical structure of social order upon a more concrete, but also a more particularistic conception of universals which involves emancipation (applied to members of various ethical and / or religious communities, liberty rather than equality and a horizontal structure of social order. A society that is confronted with the emergence cultural essentialism and inter-ethnical conflict and violence, but that, through lack of the communitarian tradition, has nothing to offer other than the pure image of a tradition that no longer reflects reality. Through lack of a constructive and appropriated means (communitarian tradition to contain cultural essentialism and to dissolve it into communitarian social life and order develops “communitarism” – the inconsequent and finally the bad version of the communitarian tradition. The most important and highly deplorable consequence is that, in public opinion; cultural essentialism and inter-ethnical violence are automatically associated to community and constructed as a derivation. In sum the real cause (clash) is turned off and turned against community and community life

On these accounts it might be legitimate to address a skeptical comment: Could it noT be that the Court’s decision confirms the reality of the same communitarism that the Court was seeking to refuse by taking the decision? In this case the decision must be thought as a piece of evidence for the impact of “communitarism” on sentencing.

Let me draw an analogy between this case and another affair that happened 111 years before in the German Empire of Guillaume II. Referring to a trial of a society of gamblers, in which some Jews were implicated, the newspaper "Tägliche Rundschau" (March 3, 1893) wrote: "This state of affairs shows that all Jewry should either be forced back to the conditions of the eighteenth century or be expelled from the country." Some Jews protested and brought a libel-suit against the paper. According to the law, in such cases every member of a libelled community had the right to prosecute. The court, however, decided (Oct. 15, 1893) that the article did not attack all Jews, but only those who had been guilty of the actions that the writer found revolting.

There is a striking resemblance between the two affairs. Both cases occur in a context of anti-Semitism. The outcome in both cases IS the same; the Jewish victims loose in trial. Finally the core arguments are aimed to motivate the Court’s decision are, to a certain degree, similar, if not the same. (i)The attacks are not targeted to all Jews. This means that in both cases the scheme of victimization is superficially shifted from the general level of the victim’s community membership to the particular level of the individual victim. And this assumes that the attacks that are obviously aimed at The Jew in general, not at somebody, are superficially abstracted from their specific nature and from the specific context to which they belong. (ii) At a first glance there is a fundamental difference between both decisions. In the “Montaigne” case, the attack, accordingly to the decision, is neither aimed to all Jews, nor is it an offence against a particular Jew. Whereas in the Berlin case, the attack, according to the Court, is not aimed at all Jews, but it is “only” aimed to some who were guilty. In fact in the Berlin case the focal centre of the attack is shifted from some guilty Jews to acts that are revolting in the eyes of the writer and given The circumstance that the writer is not someone, but a journalist of the prominent and popular “Tagesrundschau” for the pubic opinion. The artificial construction involved in the Court’s decision transfigures an anti-Semitic attack into the appropriate manifestation of a legitimate revolt, with the effect that the real victim has become the offender and the offender the victim. (iii) The inversion of the victim-offender scheme is common to both cases. Note that that the construction that supplants the quality of victim by that of the offender (and inversely) is an, inherent part in the public debate about socially and politically sensible matters. For argument’s sake it is frequently applied to terrorism.

This short discussion has shown to which high degree anti-Semitism is relevant for ‘criminal justice. As far as the study of 19^th century anti-Semitism is concerned its relevance for criminal justice results from the historical continuity and from the actuality of the issues and problems that are involved in this issue. In many regards, there is a striking resemblance between the way criminal justice was involved in 19^th century anti-Semitism and the way it faced it and the actual situation. There is another important point. Given the actual state of law, Jews are definitively emancipated. Insofar the law provides Jews with civil rights, fundamental liberties and protection from anti-Semitic acts. As we have seen before the emancipation of the Jews, during the 19^th century, is a process, not a definitively established reality. This assumes that the nature and the degree of criminal justice’s involvement in 19^th century anti-Semitism depends on the degree of emancipation, but also on the nature of emancipation. In sum the relevance of 19^th century anti-Semitism studies for criminal justice derives from the various degrees and the different levels that are inherent in the process of law making, but also from the social, political and historical conditions of this process

Traditionally Criminology’s core question is double edged: Why do people commit crime and under which conditions is crime committed?

In order to answer these questions criminologists have developed a great number of theories. And yet, given the actual state of research, there is no single theory that provides a 100 per cent explanation and a general integral theory does not exist.

Obviously many of these theories must fail when they are applied to anti-Semitic crime and violence. For arguments sake, the question why people commit anti-Semitic crime can neither be answered with reference to economic crime theories, nor is it possible to explain anti-Semitic crime with labelling theory. And yet the theory of a universal conspiracy of the Jewish finance was and still is an inherent part of the anti-Semitic ideology. This myth – however prominent during the whole 19^th century is contradicted by the reality. Note that the myth of the universal conspiracy of the Jewish financial world is nothing but the modern version of the older “universal Jewish conspiracy against Christianity”. When people commit anti-Semitic crime, it is obviously not because of a process that is aimed to criminalize their behaviour and to label it as anti-Semitic behaviour; in this case labelling- theories would rather apply to the victim, not to the offender’s anti-Semitic crime. This violence is a major concern of victimology, all the more so as the negative label and anti-Semitic violence began with the book of Esther. By virtue of this reasoning, we contemplate the most important problem that is involved in anti-Semitism – the question why it is always the Jew and why has nothing changed since the 5th Century BC? – has not been raised at some point by criminologists is not really a surprise. What is somewhat paradoxical, however,. is that the most unsolved problem in anti-Semitism study has received very little consideration in contemporary sociology and social sciences.

The most obvious and most evident answer that can be given to the question: ”Why people commit anti-Semitic crime” is ”because they hate the Jews.” This explains why anti-Semitic crime is an issue that is frequently addressed in contemporary criminology under the general heading of hate crime. Even this theory has limits since it dissolves the specific nature of anti-Semitism into the more general figure of racism. It is not respectful of the specific nature of this form of anti-Semitism, all the more so as “race and ethnicity” as principal references are irrelevant to anti-Semitism associated to religion or committed for religious motivation. There is another important observation that supports the limits of “hate crime” theory. The history of anti-Semitism, namely modern anti-Semitism, teaches that people commit anti-Semitic violence and crime without feeling resentful of Jewish people.

Even if the commission of this act involves, in general, a negative resentment in the offender’s mind, the instigation and the direction of anti-Semitic crime and riots does not necessarily presuppose such resentments. In Russia, during the 19^th century, anti-Semitic crime developed not as a result of the individual’s hate against Jews, but as a result of an anti-Semitic governmental “Realpolitik” that was aimed to contain and to prevent revolutionary and other social and political protest movement by redirecting the population’s anger against the Tsarist government and politics towards the Jews of Russia. In sum, the social and political protest movement was turned into anti-Semitic violence. On the other hand, note that this was possible only because of the old anti-Semitic resentment, namely the hate of the Russian peasantry and of the Church. Similar processes are observable in Central Europe and Germany. Obviously the history of the 19^th Century, in many regards, is the history of the governmental or State sponsored redirection and exploitation of the ancient hate against the Jews as a means to reach political goals.

Hate is not necessarily the direct cause of such acts. People commit such acts because it is habit – experienced over more than 5000 years. It is somewhat “normal” behaviour. It is an inherent part of a 5000 years old crime culture. Crime culture is an issue that has come to the fore of the criminological debate. Obviously anti-Semitic crime culture is an issue that is extremely relevant for criminology. Let me here only point to two fundamental problems criminology must face and resolve:(i) The question whether and to what degree this crime culture implicates increasing tolerance towards anti-Semitic crime and violence; (ii) What is the culture’s nature? Are the members of that culture active/ passive, a homogenous group or a heterogeneous patchwork?

As far as the second problem is concerned, all the evidence suggests that the members of that culture form a heterogeneous society. For argument’s sake, the Russian farmer has nothing to do with the German professors of 19^th century; the Tsarist anti-Semitic politics have nothing to do with the Czech evolutionary nationalists. The same observation holds for clerical and reactionary parties at the one hand and progressive movements on the other hand. Finally the profile of second or third generation of north-African immigrants youths offenders is different from that of the Neo-Nazi Skin-Heads who attack and destroy Jewish cemeteries. And yet all co-exist and co-act and all have different profiles. Obviously an anti-Semitic offender profile does not exist? How then it is possible that so many different people commit the same crime? It is likely that they all agree with the “profile” of the victim! Profiling is important for crime investigation and crime prevention. Is profiling possible, is it desirable in an anti-Semitic crime context?

There is another important point. Profiling is targeted to offenders. In anti-Semitic crime-culture, the offender is not always the individual or a group of individuals; it is frequently an institution or even the State. If profiling could be relevant for anti-Semitic crime investigation and prevention, it should be aimed on the individual offenders and institutions. In this respect, the challenge criminology must face is to think and study the institutional level of anti-Semitic crime with reference to “organized crime”.

There is indeed a striking resemblance between certain forms of organized crime and anti-Semitic crime. This observation particularly applies to the symptoms. This issue will begin the second part of my essay. 19^th century anti-Semitism is, in many regards, the matrix for an in-depth study of these problems.